State v. Hummer

• Decision Date: 19 November 1906
• Citation: 65 A. 249,73 N.J.L. 714
• Parties: STATE v. HUMMER.
• Court: New Jersey Supreme Court

65 A. 249

73 N.J.L. 714

STATE

v. HUMMER.

Court of Errors and Appeals of New Jersey

Nov. 19, 1906.

(Syllabus by the Court.)

Error to Supreme Court.

William A. Hummer was convicted of crime, and by writ of error brings up a judgment of the Supreme Court (62 Atl. 388), affirming conviction. Affirmed.

Joseph M. Noonan, for plaintiff in error. William H. Speer, for the State.

GARRISON, J. This writ of error brings up a judgment of the Supreme Court, affirming the judgment of the Hudson court of quarter sessions, wherein the plaintiff in error was convicted upon an indictment for the criminal abuse of a female child. In the opinion delivered in the Supreme Court, reported in 62 Atl. 388, the refusal of the quarter sessions to strike out the testimony of the chief of police, to the effect that other girls besides the prosecuting witness had made charges against the defendant, is sustained upon the ground that this testimony, which was given on redirect examination was legal in view of the cross-examination. We neither adopt this view, nor find it necessary to pass upon alleged illegality of the testimony, for the reason that, if all of the elements of such illegality were displayed in the question of the examining counsel, the refusal of the court to strike out the completed testimony is not a ground for reversal. The proceedings had at the trial, which have been brought before us by the plaintiff in error, show that upon redirect examination the prosecutor put to his witness this question: "And there were other girls around there making charges against this man?" to which the witness answered, "Yes." Defendant's counsel then moved that this testimony be stricken out upon the ground that it was irrelevant. It is perfectly clear, therefore, that the irrelevancy of the testimony, if it was irrelevant, was fully displayed by the question put by the prosecutor, and that the responsive answer of the witness added nothing to this or to any other ground of objection. The entire record having been returned in conformity to the 136th section of the criminal procedure act, the defendant is entitled to have the denial of his motion dealt with as "the denial of a matter by the court, which was a matter of discretion whether a bill of exceptions was settled, signed, and sealed, or not" P. L. 1898, p. 915. The precise question we are thus called upon to decide was before this court in the case of State v. Clark, 47 N. J. Law, 556, 4 Atl. 327, and was there held to afford no ground for reversal. The indictment in that case charged Clark with selling lottery policies to one Matthews. After the state had offered proof of the sale it had thus charged, one Carter was called by the state, and testified to a sale by the defendant to him. Defendant's counsel then moved to strike out the testimony of Carter, on the ground that it related to a distinct offense. In dealing with the denial of this motion, Mr. Justice Reed, after recognizing fully the illicit character of this testimony, in that it tended to show a likelihood that the defendant would commit the crime with which he was charged, said: "The testimony of Carter, so far as the record informs us, was all in before the objection to it was taken. It does not appear that there was not an opportunity afforded to the counsel for the defendant to have made his objection earlier. The rule is established that counsel cannot take the chance of testimony making in his favor, and if it happens to be adverse then interpose his objection. There is nothing to show that the defense here was not apprised of the point upon which the witness was about to speak, before his testimony relative to the sale to himself was delivered. The testimony being so in without objection, it cannot be said that the court erred in not striking it out." This case and the reasoning upon which it was founded have been frequently approved in this court In Ryan v. State, 60 N. J. Law, 33, 36 Atl. 706, it was said: "This course has fallen under repeated condemnation for the reason that it enables a defendant to elect to try his case upon illegal testimony, if it be favorable to him otherwise to use it to overthrow an adverse judgment." The judgment in this case was reversed, 60 N. J. Law, 552, 38 Atl. 672, upon the ground that it should not have been Inferred that the question was answered before objection to it was made. The opinion of this court, however, expressly stated: "If such must be the inference, the conclusion of the court was correct" In Luckenbach v. Sciple, 72 N. J. Law, 476, 63 Atl. 244, in which the same rule is restated, the opinion also points out the discretionary character or rulings of this sort, and their nonerroneous nature, excepting in cases where the discretion reposed in the trial court has been oppressively abused. The reason for the rule in all these cases is that the opposite course would encourage counsel to refrain from objecting to questions manifestly illegal until he could elect, according as the answer made for or against him, whether he would acquiesce in such illegalities or move to strike out the completed testimony. In the present case the only possible criticism of the discretion that was exercised by the trial court is that the witness may have answered the question so promptly that no opportunity for objection was afforded. Of this, however, there is not the least suggestion either in the transcript of the proceedings at the trial or in the argument of counsel. The matter was moreover one peculiarly within the cognizance of the trial judge, which is the very ground upon which the doctrine of discretion rests. The denial of his motion to strike out affords, therefore, no ground for the reversal of the judgment against the plaintiff in error.

Upon the assignment of error directed to the charge of the trial court as to what constituted criminal abuse of a female child, we concur in the views expressed in the Supreme Court, to the effect that, despite the errancy of what was charged upon this point, the plaintiff was not injured by such charge as applied to the facts in proof before the jury. The point in which we thus concur is fully treated in the opinion delivered in the Supreme Court.

A further contention, that was vigorously pressed by counsel, is that criminal abuse in our statute is identical with rape, and hence is incomplete without penetration. This assignment might be disposed of so far as this proceeding is concerned, by assuming that the jury found that...